Ross v. Pleasants , 1846 Pa. LEXIS 136 ( 1846 )

Burnside, J.

This ejectment was for-a moiety of fifty-eight acres in Augusta township.

The record shows, that about the year 1808, William Ross, the ancestor of the plaintiffs in error, settled on the land in question, and made a small improvement, where he resided with his family. He was not disturbed until the year 1822, when an ejectment was brought against him by Benjamin Williams, No. 45 to August Term, 1822; Mr. Bellas appeared as his counsel. On the 22d March, 1822, Ross sold half of his claim to Bellas for the consideration of one dollar, no doubt for the further consideration of his professional services. In 1823, Mr. Bellas tried the ejectment before arbitrators, when they found for Williams. Ross appealed, and Bellas paid to Martin Weaver, the prothonotary, $20 87£, the costs to obtain the appeal. About 1825, William Ross died, and his eldest son, Augustavius Ross, was substituted defendant in the ejectment. The Ross family continued on the land. Bellas tried the ejectment in the Common Pleas, and obtained a verdict and judgment for the defendant. After this, on the 9th of August, 1830, Bellas and Augustavius Ross entered into a new agreement, that a warrant should be taken out in the name of Augustavius Ross, on the Ross improvement; one-half the land was to belong to the heirs of Ross on their paying half of all the purchase money and expenses respecting the title, in one year from that date; but the right and title to the whole should be in Hugh Bellas, until that time in fee. On the payment being made to Bellas, he was to hold but one undivided half. It was further agreed, that Bellas was to advance the purchase money, office fees, fees of the deputy surveyor, and fees of patenting, half of which were to be repaid with interest. Ross was to execute a deed-poll to Bellas, or any other person he might direct. Bellas, on the 14th of August, took out the warrant in the name of Ross, for fifty acres, to adjoin Philips and Shipman, including the improvement of Ross. Interest from the 1st of March, 1808. This warrant was duly placed in the hands of the deputy-surveyor, Laird, who swore that he returned it; but it is not found in the deputy-surveyor’s office. Bellas paid the purchase money and fees, $17 83. The survey is on the ground, fifty-seven acres, one hundred and twenty-two perches, and a diagram made by the present deputy-surveyor is in evidence.

The first two bills of exceptions were to the giving in evidence the agreement between Bellas and Ross; and second, to the receipt of Martin Weaver, for the costs paid by Bellas on the appeal. Neither of these exceptions have been very seriously urged, nor could they, as there was no error in receiving this evidence; Bellas conveyed his moiety to Pleasants. • ,

The defendants gave in evidence a patent, dated the 30th August, 1830, to Robert Philips, for four hundred and twenty-five acres, eighty-seven perches, and showed that a judgment had been obtained against Philips, at the suit of McClelland. A fieri facias issued on the judgment, which was returned, levied October 20th, 1835, patented tract of two hundred acres more or less, adjoining the widow Rogers and others. Venditioni exponas and returned, sold a tract, patented to Robert Philips, to William Silverwood, for $270. On the 7th of January, 1836, Silverwood agreed to sell his purchase to the three plaintiffs in error, for $275.

The defendants furthér gave in evidence a transcript of a judgment, No. 129, to April Term, 1843, Hugh Bellas v. Augustavius Ross, for $15 10, entered April 12th, 1843. Debt on the article of the 9th of August, 1830 ; an execution -to constable, returned no available goods. Fieri facias, No. 5 August Term, 1843, returned, levied on the interest of Aug. Ross, in a tract of land in Augusta township, containing two hundred acres. An alias venditioni exponas, and property sold to William Ross for $71. Sheriff’s deed to William Ross for all defendant’s interest: supposed to be the undivided third part of two hundred acres more or less, of which about thirty acres are cleared, and a house and barn thereon.

The defendant’s counsel then proposed to prove, that on the trial of the ejectment of Williams against Ross, Mr. Bellas gave in evidence a warrant of the 5th December, 1793, to Daniel Levy; that he alleged for Ross, the land was not vacant; and that it belonged to third persons; and that William Ross set up that title as a defence. The warrant and survey of Levy was not produced. They could not prove their offer without producing them. Where an outstanding title has been given in evidence to defeat a plaintiff in ejectment, if that title is afterwards used against the person setting it up, it must be produced in evidence, and proved like other titles. To allow parol evidence to be given of it, would open a door for the grossest frauds, and increase the crime of perjury. It is therefore deemed unnecessary to inquire into the,, legal operation of evidence that the plaintiffs in error were not prepared to give on the trial. It is further contended, that the sale of the interest of Augustavius Ross in the two hundred acres of Levy, and the purchase of it by William Ross, one of the defendants below, is a bar to Pleasants’ recovering the land. Bellas had a judgment against Augustavius Ross. Why should he not have execution against the property of Augustavius Ross ? We see nothing to prevent him from selling his interest in the fifty-six acres, or any other lands. Only his interest was sold, and the purchaser would hold it in common with the other owners. The last exception is to the charge of the judge taking the case from the jury. We think the charge, under the evidence, was not stronger than the case required. Bellas, by his money and professional services, and by grant from the ancestor, and the son of that ancestor, for the benefit of the family, had a title to a moiety of the tract; and the defence set up against this title was without substance. The charge was not too decided for such a case.

The judgment is affirmed.